The Brexit negotiations have consistently been compared to divorce proceedings.
As talks get under way, the Press Association asks two of the UK’s top divorce lawyers about the analogy and how Britain should approach the issue.
What parallels can be drawn between Brexit and divorce proceedings?
“Invariably, when I see a client seeking advice about divorce I find that one party is more reluctant to divorce than the other,” said Julian Hawkhead, senior partner of Stowe Family Law, the UK’s largest specialist family law firm.
“I would say to clients that don’t want to divorce, that it is impossible to stay in a marriage where the other party has decided that it is over and therefore we have to focus on the practical consequences of sorting out that separation,” said Hawkhead.
Rupi Rai is principal lawyer in family law for Slater and Gordon, one of the UK’s largest law firms, and she agreed with the parallel of division.
“I always warn clients the reality is you’re not going to walk straight back out again with what you brought in, whatever your assets are, because you’ve now got to carve out two homes,” said Rai. “Likewise with Brexit.
“The question is will we reach a point where we’re all actually satisfied with what we get – and in divorce proceedings somebody tends to come away feeling more aggrieved than the other.”
How would you advise Britain as your client?
Rai suggests Britain should categorise their objectives from negotiations, such as free movement and the benefits of free trade, based on their importance.
“What is it you won’t negotiate on – what must you secure?” she said. “Then what are the items you will negotiate on, and what are the items you will concede just to try and get this moving.”
Hawkhead said: “You have to be able to consider the situation from the other party’s point of view as well, considering not only what you both want but, more importantly, why you both want it.
“There is a story I often use to illustrate this for clients about two children who are arguing over an orange that they both want. Their mother could intervene and cut the orange in half, however neither child is happy with this obvious compromise.
“Why? It turns out one of them wanted the fruit inside, the other wanted the rind.”
Which side has the stronger negotiating position?
“I always tell clients, whatever the pressure, atmosphere or difficulties at home, try not to leave,” said Rai. “The reality is the minute you get out of the family home you’re putting the other party in a better negotiating position, because they can just sit pretty.
“In the case of the EU, they can say right you’ve triggered article 50 and you’ve got to negotiate in that time. They can drag their feet and take their time, forcing us into a position where there’s an end date where we have to get a deal.”
Hawkhead believes the idea of no deal being an option is likely to have been “moderated” by Theresa May’s weakened position following the General Election. However, he thinks Britain is in a stronger negotiating position.
“I think it would be easier to represent the UK in the negotiations,” said Hawkhead. “Advising a party who has so many other interested parties involved, like the EU with its member states, is never easy.”
What is the role of the citizens in these negotiations?
“We, the citizens, are a bit like the children,” said Hawkhead – who does not believe the residence of said “children” should be used as a bartering tool.
“It’s just a question of who gives first,” he said. “My style of negotiation is not to waste time discussing unattractive or simply unreasonable points, and I think any idea that the present residence of EU citizens living in the UK or UK citizens living overseas might be in jeopardy is highly unattractive.”
Meanwhile, Rai believes the children in this case still have a role in its outcome – possibly in the form of a new referendum on the Brexit deal to be struck.
“In divorce proceedings you have a CAFCA, child and family court advisory service. They observe the child and the parent and report back on the child’s wishes and feelings,” said Rai. “The amount of weight put on those wishes depends on the maturity of the child.
“With Brexit, the children are the electorate and in this instance they need to be involved and need to be able feel their wishes are being heard.”
What relationship should Britain have with the EU post-Brexit?
“For the sake of the children, I tell my clients you may not like the other party for whatever reason but you’re going to have to put up with them for the rest of your life,” said Rai. “If we come out of the EU, we want to do it in a way which leaves you in a good relationship.
“You may not be the best of friends or have a special relationship, but they must still be able to communicate effectively for the sake of those living in the countries.”
What is the most likely outcome?
“Similar to what I tell my clients, we will depart as two separate individuals as Britain and the EU,” said Rai. “Unfortunately, both of us will be poorer and there are going to be consequences living on your own.
“You have to make do with what you get left over. Britain is going to go it alone and let’s see, we might be better off or we might not – the same goes for the EU.”
“In divorce, we talk about a cycle of loss where the emotional journey is akin to a bereavement and the parties go through feelings of denial, guilt, resentment and anger but eventually they reach a point of acceptance,” said Hawkhead. “After Brexit, the sooner we can reach the point of acceptance about our future the better.”